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Why the Speech Act Is Mostly Bark, with Little Bite

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Why the Speech Act Is Mostly Bark, with Little Bite Hofstra Law Review Volume 40 Article 13 Issue 1 FORTIETH ANNIVERSARY VOLUME 2011 Nearly Toothless: Why the Speech Act is Mostly Bark, with Little itB e Elizabeth J. Elias Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Elias, Elizabeth J. (2011) "Nearly Toothless: Why the Speech Act is Mostly Bark, with Little itB e," Hofstra Law Review: Vol. 40: Iss. 1, Article 13. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol40/iss1/13 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Elias: Nearly Toothless: Why the Speech Act is Mostly Bark, with Little NOTE NEARLY TOOTHLESS: WHY THE SPEECH ACT IS MOSTLY BARK, WITH LITTLE BITE I. INTRODUCTION In 1990, after his first appearance as the title character in The Tenninator,' and before his stint as the thirty-eighth Governor of California,2 Arnold Schwarzenegger found himself trying to squelch a public relations nightmare.3 Two years earlier, celebrity journalist Wendy Leigh supplied information to a writer of a front-page story in Rupert Murdoch's News of the World, which claimed that Schwarzenegger was a Hitler admirer who held "fervent Nazi and anti- Semitic views."4 By 1990, Leigh was on the verge of publishing an unauthorized biography filled with allegations of Schwarzenegger's past homosexual experiences, use and sale of steroids, and criminal history. 5 Leigh claimed that Schwarzenegger waged a campaign to halt the publication and sabotage the promotion of her book.6 Schwarzenegger's publicist allegedly offered money to Leigh's publisher to drop the biography and threatened television producers who wanted to feature 1. THE TERMINATOR (Hemdale Film 1984). The film marked Arnold Schwarzenegger's first of three appearances as the Terminator in a franchise created by director James Cameron. See James Cameron, IMDB, http://www.imdb.com/name/nmnO001 16/ (last visited Mar. 1, 2012). 2. Arnold Schwarzenegger, STATE OF CAL., http://govemors.library.ca.gov/38-Schwarzen egger.html (last visited Mar. 1, 2012) (stating that Governor Schwarzenegger took office in 2003). 3. See generally Neal Koch, The Hollywood Treatment: The Terminator at Work?, COLUM. JOURNALISM REV., Jan.-Feb. 1991, at 25, 28-29 (reporting on claims of Schwarzenegger's "heavy- handed campaign" to suppress the publication of Wendy Leigh's book, which contained damaging information about Schwarzenegger). 4. LAURENCE LEAMER, FANTASTIC: THE LIFE OF ARNOLD SCHWARZENEGGER 193-94 (2005) (internal quotation marks omitted). The article alleged that Schwarzenegger's father "had personally directed the rounding up of Jews to be taken to concentration camps." Id. Although Leigh was given a joint byline on the story, she did not take part in writing it. Id. at 194. 5. Charles Fleming, Arnie's Army, SPY, Mar. 1992, at 60, 63. Time correspondent James Willwerth verified Leigh's research, claiming that the biography "was very well reported." Koch, supra note 3, at 28 (internal quotation marks omitted). 6. Koch, supra note 3, at 28. Published by Scholarly Commons at Hofstra Law, 2014 1 Hofstra Law Review, Vol. 40, Iss. 1 [2014], Art. 13 HOFSTRA LAW REVIEW [Vol. 40:235 Leigh on their shows.7 Nonetheless, attempts to suppress the dissemination of Leigh's work failed-that is, until Schwarzenegger sued Leigh and News of the World for libel.8 When Schwarzenegger pursued the libel lawsuit in the United Kingdom, he became one of the world's first "libel tourists"9-a well-heeled public figure, scorned by a scandalous publication and seeking redress in a court outside the United States with plaintiff-friendly libel laws. 10 Because U.K. libel law required News of the World to prove not only that it believed what it had published, but also that what it had published was actually the truth and important for the public to know, the paper settled with Schwarzenegger for £30,000." Leigh, who initially claimed that the lawsuit was harassment, settled out of court in 1993 after her Schwarzenegger biography suffered disappointing sales.12 She paid Schwarzenegger substantial damages and legal fees and publicly apologized for the News of the World article, stating that there was "not a word of truth" in it. 13 When later commenting on the Leigh debacle, Schwarzenegger allegedly said: "Everybody in [the United States] has the freedom to say what he or she wants to, but I sometimes 14 think there is too much of that commodity for my taste."' Since 1990, libel tourism-the practice of forum shopping in non- U.S. courts whose defamation laws do not afford First Amendment-type protections to authors and publishers-has grown in popularity. 15 From 7. Id. at 28-29. 8. LEAMER, supra note 4, at 194. 9. See Mark Stephens, Partner, Finers Stephens Innocent, Remarks at the Authors Guild Foundation Panel Discussion: Rules, Britannia! The Growing, Chilling Reach of Commonwealth Libel Laws (Sept. 25, 2006) (transcript available at http://www.authorsguild.org/publications/ seminartranscripts/rules.html) (stating that Arnold Schwarzenegger "was the first libel tourist to climb aboard the Concorde and come over to London in three and a half hours in order to skip up the Strand with a writ in his hand merrily to issue it against an American authoress named Wendy Leigh"). 10. Doug Rendleman, Collecting a Libel Tourist's Defamation Judgment?, 67 WASH. & LEE L. REv. 467, 468 (2010) (defining a "libel tourist" as a forum shopper who shuns the United States in order to file "a defamation lawsuit against a U.S. defendant in a forum with plaintiff-favoring defamation doctrines"). 11. LEAMER, supra note 4, at 194-95; Koch, supra note 3, at 29. The British paper also issued a public apology, stating that "there was no truth to any of the allegations." LEAMER, supra note 4, at 195. 12. LEAMER, supra note 4, at 195-96; Koch, supra note 3, at 29. 13. LEAMER, supra note 4, at 196 (internal quotation marks omitted). 14. Fleming, supra note 5, at 64 (internal quotation marks omitted). 15. See Libel Tourism: Hearing Before the Subcomm. on Commercial & Admin. Law of the H. Comm. on the Judiciary, 1 l1th Cong. 49 (2009) [hereinafter Libel Tourism Hearing] (prepared statement of Laura R. Handman, Partner, Davis Wright Tremaine LLP). The topic of libel tourism is so popular that it has even made primetime television. In an episode of The Good Wife, an American legal drama airing on CBS, Alicia Florrick (played by Julianna Margulies) successfully defends her http://scholarlycommons.law.hofstra.edu/hlr/vol40/iss1/13 2 Elias: Nearly Toothless: Why the Speech Act is Mostly Bark, with Little 2011] WHY THE SPEECHACT IS MOSTLY BARK, WITH LITLE BITE U.S. celebrities such as Britney Spears and Harrison Ford to "ex-Soviet oligarchs and Middle Eastern oil tycoons,"'16 wealthy litigants have used libel tourism against American authors and publishers (including those online) for various purposes: to obtain public apologies, retractions, settlements, or default judgments, or simply to intimidate and dissuade future publication about them. 17 As a result, libel tourism has had the dangerous result of depriving U.S. citizens of their First Amendment rights.' 8 The practice has not only made celebrity tabloids think twice regarding whom they write about and what they publish about celebrities,19 but it has also deterred reporting on matters of serious public importance.2° In effect, libel tourism has taken a toll on the ability of scholars and j ournalists to publish their work.2 On August 10, 2010, President Barack Obama signed into law the Securing the Protection of Our Enduring and Established Constitutional Heritage Act (the "SPEECH Act"),22 with hopes that the Act would put an end to libel tourism. 23 The SPEECH Act bars U.S. domestic courts from enforcing or recognizing foreign libel judgments, unless a court finds that the foreign judgment comports with the First Amendment.24 client in the United States against a charge of libel, but must argue the case again via video conference when the suit is brought before a London court. The Good Wife: The Death Zone (CBS television broadcast Oct. 2, 2011). "Do you know the key distinction between the libel laws in your country and mine?" asks Eddie Izzard as opposing British counsel. Id."The burden of proof is reversed." Id. 16. See Ellen Bernstein, Comment, Libel Tourism's Final Boarding Call, 20 SETON HALL J. SPORTS & ENT. L. 205, 206-07, 212-13 (2010) (internal quotation marks omitted) (listing celebrities such as Jennifer Lopez, Marc Anthony, Cameron Diaz, Kate Hudson, Britney Spears, and Harrison Ford as plaintiffs who have sued for libel abroad; also listing Russian media tycoon Boris Berezovsky and Saudi businessman Khalid bin Mahfouz as libel tourists). 17. See Libel Tourism Hearing, supra note 15, at 8 (prepared statement of Rep. Peter King) (listing the multiple intentions litigants have in using libel tourism). 18. See U.N. Rep. of the Human Rights Comm., 93d Sess., July 7-25, 2008, 81, U.N. Doc. A/63/40 (Vol. I);GAOR, 63d Sess., Supp. No. 40 (2008), available at http://www.ccprcentre. org/doc/ICCPR/AR/A_63_40(Vol%201)_Eng.pdf (criticizing the United Kingdom's libel laws as having a chilling effect upon freedom of expression). 19. See Robert Verkaik, Invasion of the Libel Tourists, INDEPENDENT (Aug. 21, 2008), available at http://www.independent.co.uk/news/uk/home-news/invasion-of-the-libel-tourists-904 11 L.html.
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